This part implements the Fishery Management Plan for the American Lobster Fishery (FMP), as amended by the New England Fishery Management Council in consultation with the Mid-Atlantic Fishery Management Council and the Atlantic States Marine Fisheries Commission (ASMFC), and approved by the Assistant Administrator for Fisheries, NOAA. Red crab fishing gear, which is fished deeper than 200 fathoms (365.8 m), is gear not capable of taking lobsters, and is not subject to the provisions of this part.

§ 649.2Definitions.

In addition to the definitions in the Magnuson Act and in § 620.2 of this chapter, the terms used in this part have the following meanings:

American lobster or lobster means the species Homarusamericanus.

Beam trawl means gear, consisting of a twine bag attached to a beam attached to a towing wire, designed so that the beam does not contact the bottom. The beam is constructed with sinkers or shoes on either side that support the beam above the bottom or any other modification so that the beam does not contact the bottom. The beam trawl is designed to slide along the bottom rather than dredge the bottom.

Carapace length is the straight line measurement from the rear of the eye socket parallel to the center line of the carapace to the posterior edge of the carapace. The carapace is the unsegmented body shell of the American lobster.

Council means the New England Fishery Management Council.

Dealer means any person who receives American lobsters for a commercial purpose from the owner or operator of a vessel issued a valid Federal vessel permit under this part, other than exclusively for transport on land.

Dive vessel means any vessel carrying divers for a per capita fee or a charter fee.

Effort Monitoring Team (EMT) means a group of technical experts made up of representatives from the Council, NMFS, the appropriate states, and a group of American lobster industry representatives (appointed by the Council), per management area, to each EMT.

Escape vent means an opening in a lobster trap designed to allow lobster smaller than the legal minimum size to escape from the trap.

Ghost panel means a panel, or other mechanism, designed to allow for the escapement of lobster after a period of time if the trap has been abandoned or lost.

Gross registered tonnage means the gross registered tonnage specified on the U.S. Coast Guard documentation for a vessel.

Land means to enter port with fish on board, to begin offloading fish, or to offload fish.

Lobster pot trawl means a number of lobster traps, all attached to a single groundline.

Mobile gear means trawls, beam trawls, and dredges that are designed to maneuver with that vessel.

Net tonnage means the net tonnage specified on the U.S. Coast Guard documentation for a vessel.

Offload means to begin to remove, to remove, to pass over the rail, or otherwise take away fish from any vessel.

Operator means the master or captain of the vessel, or other individual on board the vessel, who is in charge of that vessel's operations.

Party/charter boat means any vessel carrying fishing persons or parties for a per capita fee or for a charter fee.

Postmark means independently verifiable evidence of date of mailing, such as U.S. Postal Service postmark, United Parcel Service (U.P.S.) or other private carrier postmark, certified mail receipt, overnight mail receipt, or receipt received upon hand delivery to an authorized representative of NMFS.

Recreational fishing means fishing that is not intended to, nor results in the barter, trade, or sale of fish.

Recreational fishing vessel means any vessel from which no fishing other than recreational fishing is conducted. Charter and party boats and dive boats are not considered recreational fishing vessels.

Re-rig or re-rigged means physical alteration of the vessel or its gear in order to transform the vessel into one capable of fishing commercially for American lobsters.

Scrubbing is the forcible removal of eggs from a berried female American lobster.

Trawl means gear consisting of a net that is towed, including but not limited to beam trawls, pair trawls, otter trawls, and Danish and Scottish seine gear.

Under agreement for construction means that the keel has been laid and that there is a written agreement to construct a fishing vessel.

V-notched American lobster means any female American lobster bearing a V-shaped notch in the flipper next to and to the right of the center flipper as viewed from the rear of the lobster (underside of the lobster down and tail toward the viewer).

V-shaped notch means a straight-sided triangular cut, without setal hairs, as least 1/4 inch (0.64 cm) in depth and tapering to a point.

Whole American lobster means a lobster with an intact and measurable body (tail and carapace). A cull whole American lobster is an American lobster with one or both claws missing.

(a) The relation of this part to other laws is set forth in § 620.3 of this chapter.

(b) Nothing in these regulations shall supersede more restrictive state management measures for American lobsters.

§ 649.4Vessel permits.

(a) 1994 vessel permits. (1) Through April 30, 1995, any vessel of the United States fishing for American lobster in the EEZ must have been issued and carry on board a valid permit required by or issued under this part. The Regional Director may, by agreement with State agencies, recognize permits or licenses issued by those agencies endorsed for fishing for lobster in the EEZ, providing that such permitting programs accurately identify persons who fish in the EEZ, and that the Regional Director can either individually, or in concert with the state agency, act to suspend the permit or license for EEZ fishing for any violation under this part.

(2) Alternate State EEZ permitting programs will be established through a letter of agreement between the Regional Director and the director of the State marine fisheries agency concerned. The letter of agreement will specify the information to be collected by the alternate EEZ permitting program and the mode and frequency of provision of that information to the Regional Director. The Regional Director will, in cooperation with the State director, arrange for notification of the existence and terms of any such agreements to the affected persons. Persons intending to fish in the EEZ should determine whether an alternate EEZ permitting program is in force for their state before applying for a Federal permit under paragraph (d) of this section.

(3) Vessel owners or operators who apply for a fishing vessel permit under this section, or for a State permit endorsed for EEZ fishing under paragraph (a)(2) of this section, must agree, as a condition of the permit, that all the vessel's lobster fishing, catch, and gear (without regard to whether such fishing occurs in the EEZ or landward of the EEZ, and without regard to where such lobster, lobster meats, or parts, or gear are possessed, taken or landed) will be subject to all the requirements of this part. All such fishing, catch, and gear will remain subject to any applicable state or local requirements. If a requirement of this part and a conservation measure required by state or local law differ, any vessel owner or operator permitted to fish in the EEZ must comply with the more restrictive requirement.

(b) Limited access American lobster permits. From May 1, 1995, through December 31, 1999, any vessel of the United States that fishes for, possesses, or lands American lobster in or harvested from the EEZ must have been issued and carry on board a valid Federal limited access American lobster permit. This requirement does not apply to party, charter and dive boats that possess six or fewer American lobsters, not intended for or resulting in trade, barter or sale, per person aboard the vessel at any time, or to recreational vessels, and vessels that fish exclusively in state waters for American lobsters.

(1) Eligibility in 1995. (i) To be eligible for a limited access permit for 1995, a vessel or the permit applicant must meet one of the following criteria:

(A) The vessel was issued a Federal American lobster permit and landed American lobster prior to March 25, 1991, while in possession of the lobster permit.

(B) To qualify for the limited access permit based on a federally endorsed state permit history, one of the following criteria must be met:

(1) The permit applicant was issued a federally endorsed state American lobster permit, and landed American lobster prior to March 25, 1991, and owned a vessel that landed American lobster prior to March 25, 1991, while in possession of the lobster permit; or

(2) The vessel was owned by a person who landed lobster prior to March 25, 1991, while in possession of a valid federally endorsed state American lobster permit, and the vessel was transferred to the current vessel owner in accordance with the exception to the presumption specified in paragraph (b)(3)(ii) of this section; or

(3) The permit applicant owned a vessel that landed American lobster prior to March 25, 1991, while under the operation of an individual with a valid federally endorsed state lobster permit; or

(4) The permit applicant owned a vessel that landed American lobster prior to March 25, 1991, while the applicant held a valid signed written lease, recognized and authorized by the issuing state, granting the rights to a federally endorsed state lobster permit.

(C) The vessel was under written agreement for construction or rerigging for directed American lobster fishing, or was under written contract for purchase as of March 25, 1991, and the applicant meets one of the eligibility criteria set forth in paragraph (b)(1)(i)(A) or (B) of this section. For the purposes of paragraph (b)(1)(i)(C) all references to March 25, 1991, in paragraph (b)(1)(i)(A) or (B) of this section should be March 25, 1992.

(D) The vessel is replacing a vessel that meets the criteria set forth in paragraph (b)(1)(i)(A), (B), or (C) of this section.

(ii) No more than one vessel may qualify, at any one time, for a limited access American lobster permit based on that or another vessel's fishing and permit history. If more than one vessel owner claims eligibility for a limited access American lobster permit, based on one vessel's fishing and permit history, the Regional Director shall determine who is entitled to qualify for the limited access American lobster permit.

(iii) A limited access American lobster permit for 1995 will not be issued unless an application for such permit is received by the Regional Director on or before December 31, 1995.

(2) Eligibility in 1996 and thereafter. (i) To be eligible to renew or apply for a limited access lobster permit after 1995, a vessel or permit applicant must have been issued either a limited access lobster permit or a confirmation of permit history for the preceding year, or a vessel must be replacing a valid limited access American lobster permit or permit history confirmation from the preceding year. If more than one applicant claims eligibility to apply for a limited access American lobster permit based on one fishing and permit history, the Regional Director shall determine who is entitled to qualify for the limited access permit or permit history confirmation.

(ii) Beginning January 1, 2000, any vessel of the United States that fishes for, possesses, or lands American lobster, in or harvested from the EEZ, must have been issued and carry on board a valid Federal American lobster permit. This requirement does not apply to party, charter and dive boats that possess six or fewer American lobsters, not intended for or resulting in trade, barter, or sale, per person aboard the vessel at any time, or to recreational vessels and vessels that fish exclusively in state waters for American lobsters. The eligibility requirements for limited access permits for the years 1996 - 1999 are not applicable for obtaining an American lobster permit for the year 2000 and thereafter.

(3) Change in ownership. (i) The fishing and permit history of a vessel that qualifies based on issuance of a Federal lobster permit under paragraphs (b)(1)(i)(A) and (C) of this section is presumed to transfer with the vessel whenever it is bought, sold or otherwise transferred, unless there is a written agreement, signed by the transferor/seller and transferee/buyer, or other credible written evidence, verifying that the transferor/seller is retaining the vessel fishing and permit history for purposes of replacing the vessel.

(ii) The fishing and permit history of a vessel owner and a vessel that qualifies based on issuance of a federally endorsed state lobster permit under paragraphs (b)(1)(i)(B) and (C) of this section is presumed to remain with such owner for any transfers of the vessel before and including March 25, 1991; and for any transfers of ownership of the vessel after March 25, 1991, the fishing and permit history necessary to qualify for a limited access lobster permit under paragraphs (b)(1)(i)(B) and (C) of this section is presumed to remain with the last owner of the vessel as of or prior to March 25, 1991, unless there is a written agreement, signed by the transferor/seller and transferee/buyer, or other credible written evidence, verifying that the transferor/seller is transferring the fishing and permit history of a vessel necessary to qualify for a limited access lobster permit under paragraph (b)(1)(i)(B) or (C) of this section to the transferee/buyer.

(4) Notification of eligibility for a limited access permit. (i) NMFS will attempt to notify all owners of vessels for which NMFS has credible evidence that they meet the criteria in paragraph (b)(1) of this section.

(ii) If a vessel owner has not been notified that the vessel is eligible to be issued a limited access American lobster permit, and the vessel owner believes that there is credible evidence that the vessel does qualify under the pertinent criteria, the vessel owner may apply for a limited access American lobster permit by submitting the information described in paragraphs (d) through (e) of this section. In the event the application is denied, the applicant may appeal as specified in paragraph (b)(5) of this section. If, through either of these procedures, the Regional Director determines that the vessel meets the eligibility criteria, a limited access American lobster permit will be issued to the vessel.

(5) Appeal of denial of limited access American lobster permit or of permit category assignment. (i) Any applicant denied a limited access American lobster permit may appeal the denial to the Regional Director within 30 days of the notice of denial. Any such appeal must be based on one or more of the following grounds, must be in writing, and must state the grounds for the appeal:

(A) The information used by the Regional Director was based on mistaken or incorrect data;

(B) The applicant was prevented by circumstances beyond his/her control from meeting relevant criteria; or

(C) The applicant has new or additional information.

(ii) The Regional Director will appoint a designee who will make the initial decision on the appeal.

(iii) The appellant may request a review of the initial decision by the Regional Director by so requesting, in writing, within 30 days of the notice of initial decision. If the appellant does not request a review of the initial decision within 30 days, the initial decision shall become the final administrative action of the Department of Commerce.

(iv) Recommendations to the Regional Director by a hearing officer. A hearing officer shall be appointed by the Regional Director to review the initial decision. The hearing officer shall make findings and a recommendation to the Regional Director, which shall be advisory only.

(v) Upon receiving the findings and a recommendation, the Regional Director will issue a final decision on the appeal. The Regional Director's decision is the final administrative action of the Department of Commerce.

(vi) Fishing during appeal. A vessel for which an appeal has been initiated and that was issued a 1994 Federal or federally endorsed state lobster permit, may fish for American lobster in the EEZ if the appeal is pending and the vessel has on board an authorizing letter from the Regional Director. If the appeal is finally denied, the Regional Director shall send a notice of final denial to the vessel owner; the authorizing letter becomes invalid 5 days after receipt of the notice of denial.

(6) Confirmation of Permit History. Notwithstanding any other provisions of this part, a person who does not currently own a fishing vessel, but who has owned a qualifying vessel that has sunk, been destroyed, or transferred to another person, may apply for and receive a Confirmation of Permit History if the fishing and permit history of such vessel has been retained lawfully by the applicant. To be eligible to obtain a Confirmation of Permit History, the applicant must show that the qualifying vessel meets the eligibility requirements, as applicable, in this part. Issuance of a valid and current Confirmation of Permit History preserves the eligibility of the applicant to apply for or renew a limited access permit for a replacement vessel based on the qualifying vessel's fishing and permit history at a subsequent time, subject to the replacement provisions specified at § 649.4. A Confirmation of Permit History must be applied for and received on an annual basis in order for the applicant to preserve the fishing rights and limited access eligibility of the qualifying vessel. If fishing privileges have been assigned or allocated previously under this part based on the qualifying vessel's fishing and permit history, the Confirmation of Permit History also preserves such fishing privileges. Any decision regarding the issuance of a Confirmation of Permit History for a qualifying vessel that has applied for or been issued previously a limited access permit under this part is a final agency action subject to judicial review under 5 U.S.C. 704. Applications for a Confirmation of Permit History shall be accepted by the Regional Director on or before December 31, 1995. For subsequent years, applications must be received by the end of the calendar year in which the Confirmation of Permit History expires. Information requirements for the Confirmation of Permit History application shall be the same as those for a limited access permit with any request for information about the vessel being applicable to the qualifying vessel that has been sunk, destroyed, or transferred. Vessel permit applicants who hold a Confirmation of Permit History and who wish to obtain a vessel permit for a replacement vessel based upon the previous vessel history may do so pursuant to paragraph (b) of this section.

(c) Condition. Vessel owners who apply for a permit under this section must agree, as a condition of the permit, that the vessel and vessel's fishing, catch, and pertinent gear (without regard to whether such fishing occurs in the EEZ or landward of the EEZ, and without regard to where such fish or gear are possessed, taken, or landed), are subject to all requirements of this part. The vessel and all such fishing, catch, and gear shall remain subject to all applicable state or local requirements. If a requirement of this part and a management measure required by state or local law differ, any vessel owner permitted to fish in the EEZ must comply with the more restrictive requirement.

(d) Vessel permit application. Applicants for a permit under this section must submit a completed application on an appropriate form obtained from the Regional Director. The application must be signed by the owner of the vessel, or the owner's authorized representative, and be submitted to the Regional Director at least 30 days before the date on which the applicant desires to have the permit made effective. The Regional Director will notify the applicant of any deficiency in the application pursuant to this section. Applicants for 1995 limited access American lobster permits who have not been notified of eligibility by the Regional Director shall provide information with the application sufficient for the Regional Director to determine whether the vessel meets the eligibility requirements specified under paragraph (b)(1) of this section. Acceptable forms of proof include, but are not limited to, state weigh-out records, packout forms, and settlement sheets.

(e) Information requirements. In addition to applicable information required to be provided by paragraph (d) of this section, an application for a Federal American lobster permit must contain at least the following information, and any other information required by the Regional Director: Vessel name; owner name, mailing address, and telephone number; U.S. Coast Guard documentation number and a copy of the vessel's U.S. Coast Guard documentation or, if undocumented, state registration number and a copy of the state registration; home port and principal port of landing; overall length; gross tonnage; net tonnage; engine horsepower; year the vessel was built; type of construction; type of propulsion; approximate fish-hold capacity; type of fishing gear used by the vessel; permit category; if the owner is a corporation, a copy of the Certificate of Incorporation; and the names and addresses of all shareholders owning 25 percent or more of the corporation's shares; if the owner is a partnership, a copy of the Partnership Agreement and the names and addresses of all partners; if there is more than one owner, names of all owners having more than a 25 percent interest; and name and signature of the owner or the owner's authorized representative.

(f) Fees. The Regional Director may charge a fee to recover the administrative expense of issuing a permit required under this section. The amount of the fee shall be calculated in accordance with the procedures of the NOAA Finance Handbook for determining administrative costs of each special product or service. The fee may not exceed such costs and is specified with each application form. The appropriate fee must accompany each application; if it does not, the application will be considered incomplete for purposes of paragraph (g)(1) of this section.

(g) Issuance. (1) Except as provided in subpart D of 15 CFR part 904 and under paragraph (b)(5) of this section, the Regional Director shall issue a Federal American lobster vessel permit within 30 days of receipt of the application unless:

(i) The applicant has failed to submit a completed application. An application is complete when all requested forms, information, documentation, and fees, if applicable, have been received; or

(ii) The application was not received by the Regional Director by the deadlines set forth in paragraph (b)(1)(iii) of this section; or

(iii) The applicant and applicant's vessel failed to meet all eligibility requirements described in paragraphs (b)(1) and (2) of this section; or

(iv) The applicant has failed to meet any other application requirements stated in this part.

(2) Upon receipt of an incomplete or improperly executed application, the Regional Director shall notify the applicant of the deficiency in the application. If the applicant fails to correct the deficiency within 30 days following the date of notification, the application will be considered abandoned.

(h) Expiration. A Federal American lobster permit will expire upon the renewal date specified in the permit.

(i) Duration. A permit is valid until it is revoked, suspended, or modified under 15 CFR part 904, or until it otherwise expires, or ownership changes, or the applicant has failed to report any change in the information on the permit application to the Regional Director as specified in paragraph (l) of this section.

(j) Replacement. Replacement permits, for an otherwise valid permit, may be issued by the Regional Director when requested in writing by the owner or authorized representative, stating the need for replacement, the name of the vessel, and the Federal Fisheries Permit number assigned. An application for a replacement permit will not be considered a new application. An appropriate fee may be charged for issuance of the replacement permit.

(k) Transfer. Permits issued under this section are not transferable or assignable. A permit is valid only for the vessel and owner to whom it is issued.

(l) Change in application information. Within 15 days after a change in the information contained in an application submitted under this section, a written notice of the change must be submitted to the Regional Director. If the written notice of the change in information is not received by the Regional Director within 15 days, the permit is void.

(m) Alteration. Any permit that has been altered, erased, or mutilated is invalid.

(n) Display. Any permit issued under this part must be maintained in legible condition and displayed for inspection upon request by any authorized officer.

(o) Sanctions. Procedures governing enforcement-related permit sanctions and denials are found at subpart D of 15 CFR part 904.

(p) Limited access American lobster permit renewal. To renew a limited access permit in 1996 and thereafter, a completed application must be received by the Regional Director by December 31 of the year in which the permit is required. Failure to renew a limited access American lobster permit or confirmation of permit history in any year prevents the renewal of such in subsequent years.

(q) Abandonment or voluntary relinquishment of limited access American lobster permits. If a vessel's limited access American lobster permit or confirmation of permit history is voluntarily relinquished to the Regional Director, or abandoned through failure to renew or otherwise, no limited access American lobster permit or confirmation of permit history may be reissued or renewed based on that vessel's history.

(a) General. Beginning on January 1, 1995, any operator of a vessel issued a Federal limited access American lobster permit under § 649.4(b), or any operator of a vessel of the United States that fishes for, possesses, or lands American lobsters, in or harvested from the EEZ must have been issued and carry on board a valid operator's permit issued under this section. This requirement does not apply to party, charter, and dive boats that possess six or fewer American lobsters, not intended for or resulting in trade, barter or sale, per person aboard the vessel at any time, or to recreational vessels, and vessels that fish exclusively in state waters for American lobsters.

(b) Operator application. Applicants for a permit under this section must submit a completed permit application on an appropriate form obtained from the Regional Director. The application must be signed by the applicant and submitted to the Regional Director at least 30 days prior to the date on which the applicant desires to have the permit made effective. The Regional Director will notify the applicant of any deficiency in the application, pursuant to this section.

(c) Condition. Vessel operators who apply for an operator's permit under this section must agree, as a condition of this permit, that the operator and vessel's fishing, catch, crew size, and pertinent gear (without regard to whether such fishing occurs in the EEZ or landward of the EEZ, and without regard to where such fish or gear are possessed, taken, or landed), are subject to all requirements of this part while fishing in the EEZ or on board a vessel permitted under § 649.4(b). The vessel and all such fishing, catch, and gear will remain subject to all applicable state or local requirements. Further, such operators must agree, as a condition of this permit, that if the permit is suspended or revoked pursuant to 15 CFR part 904, the operator cannot be on board any fishing vessel issued a Federal Fisheries Permit or any vessel subject to Federal fishing regulations while the vessel is at sea or engaged in offloading. If a requirement of this part and a management measure required by state or local law differ, any operator issued a permit under this part must comply with the more restrictive requirement.

(d) Information requirements. An applicant must provide at least all the following information and any other information required by the Regional Director: Name, mailing address, and telephone number; date of birth; hair color; eye color; height; weight; social security number (optional) and signature of the applicant. The applicant must also provide two color passport- size photographs.

(e) Fees. The Regional Director may charge a fee to recover the administrative expense of issuing a permit required under this section. The amount of the fee is calculated in accordance with the procedures of the NOAA Financial Handbook for determining the administrative costs of each special product or service. The fee may not exceed such costs and is specified with each application form. The appropriate fee must accompany each application; if it does not, the application will be considered incomplete for purposes of paragraph (f) of this section.

(f) Issuance. Except as provided in subpart D of 15 CFR part 904, the Regional Director shall issue an operator's permit within 30 days of receipt of a completed application, if the criteria specified in this section are met. Upon receipt of an incomplete or improperly executed application, the Regional Director will notify the applicant of the deficiency in the application. If the applicant fails to correct the deficiency within 30 days following the date of notification, the application will be considered abandoned.

(g) Expiration. A Federal operator permit will expire upon the renewal date specified in the permit.

(h) Duration. A permit is valid until it is revoked, suspended, or modified under 15 CFR part 904, or otherwise expires, or the applicant has failed to report a change in the information on the permit application to the Regional Director as specified in paragraph (k) of this section.

(i) Replacement. Replacement permits, for otherwise valid permits, may be issued by the Regional Director when requested in writing by the applicant, stating the need for replacement and the Federal operator permit number assigned. An applicant for a replacement permit must also provide two color passport-size photos of the applicant. An application for a replacement permit will not be considered a new application. An appropriate fee may be charged.

(j) Transfer. Permits issued under this section are not transferable or assignable. A permit is valid only for the person to whom it is issued.

(k) Change in application information. Notice of a change in the permit holder's name, address, or telephone number must be submitted in writing to, and received by, the Regional Director within 15 days of the change in information. If written notice of the change in information is not received by the Regional Director within 15 days, the permit is void.

(l) Alteration. Any permit that has been altered, erased, or mutilated is invalid.

(m) Display. Any permit issued under this part must be maintained in legible condition and displayed for inspection upon request by any authorized officer.

(n) Sanctions. Vessel operators with suspended or revoked permits may not be on board a federally permitted fishing vessel in any capacity while the vessel is at sea or engaged in offloading. Procedures governing enforcement related permit sanctions and denials are found at subpart D of 15 CFR part 904.

(o) Vessel owner responsibility. Vessel owners are responsible for ensuring that their vessels are operated by an individual with a valid operator's permit issued under this section.

§ 649.6Dealer permits.

(a) All dealers must have been issued, and have in their possession, a valid permit issued under this section.

(b) Dealer application. Applicants for a permit under this section must submit a completed application on an appropriate form provided by the Regional Director. The application must be signed by the applicant and submitted to the Regional Director at least 30 days before the date upon which the applicant desires to have the permit made effective. For 1994, a copy of an applicant's completed application will serve as a temporary permit until the applicant has received a permanent permit. The Regional Director will notify the applicant of any deficiency in the application, pursuant to this section.

(c) Information requirements. Applications must contain at least the following information and any other information required by the Regional Director: Company name, place(s) of business, mailing address(es) and telephone number(s); owner's name; dealer permit number (if a renewal); and name and signature of the person responsible for the truth and accuracy of the report. If the dealer is a corporation, a copy of the Certificate of Incorporation must be included with the application. If the dealer is a partnership, a copy of the Partnership Agreement and the names and addresses of all partners must be included with the application.

(d) Fees. The Regional Director may charge a fee to recover the administrative expense of issuing a permit required under this section. The amount of the fee is calculated in accordance with the procedures of the NOAA Finance Handbook for determining the administrative costs of each special product or service. The fee may not exceed such costs and is specified with each application form. The appropriate fee must accompany each application; if it does not, the application will be considered incomplete for purposes of paragraph (e) of this section.

(e) Issuance. Except as provided in subpart D of 15 CFR part 904, the Regional Director will issue a permit at any time during the fishing year to an applicant, unless the applicant has failed to submit a completed application. An application is complete when all requested forms, information, and documentation have been received. Upon receipt of an incomplete or improperly executed application, the Regional Director will notify the applicant of the deficiency in the application. If the applicant fails to correct the deficiency within 30 days following the date of notification, the application will be considered abandoned.

(f) Expiration. A Federal dealer permit will expire upon the renewal date specified in the permit.

(g) Duration. A permit is valid until it is revoked, suspended, or modified under 15 CFR part 904, or otherwise expires, or ownership changes, or the applicant has failed to report any change in the information on the permit application to the Regional Director as required by paragraph (j) of this section.

(h) Replacement. Replacement permits, for otherwise valid permits, may be issued by the Regional Director when requested in writing by the applicant, stating the need for replacement and the Federal dealer permit number assigned. An application for a replacement permit will not be considered a new application. An appropriate fee may be charged.

(i) Transfer. Permits issued under this section are not transferable or assignable. A permit is valid only for the person, or other business entity, to which it is issued.

(j) Change in application information. Within 15 days after a change in the information contained in an application submitted under this section, a written report of the change must be submitted to, and received by, the Regional Director. If written notice of the change in information is not received by the Regional Director within 15 days, the permit is void.

(k) Alteration. Any permit that has been altered, erased, or mutilated is invalid.

(l) Display. Any permit, or a valid duplicate thereof, issued under this section must be maintained in legible condition and displayed for inspection upon request by any authorized officer.

(m) Federal versus state requirements. If a requirement of this part differs from a fisheries management measure required by state law, any dealer issued a Federal dealer permit must comply with the more restrictive requirement.

(n) Sanctions. Procedures governing enforcement-related permit sanctions and denials are found at subpart D of 15 CFR part 904.

§ 649.7Vessel identification.

(a) Vessel name. Each fishing vessel subject to this part that is over 25 ft (7.6 m) in length must display its name on the port and starboard sides of its bow and, if possible, on its stern.

(b) Official number. Each fishing vessel subject to this part that is over 25 ft (7.6 m) in length must display its official number on the port and starboard sides of its deckhouse or hull, and on an appropriate weather deck, so as to be visible from above by enforcement vessels and aircraft. The official number is the U.S. Coast Guard documentation number or the vessel's state registration number for vessels not required to be documented under chapter 123 of title 46 U.S.C.

(c) Numerals. The official number must be permanently affixed in contrasting block Arabic numerals at least 18 inches (45.7 cm) in height for vessels over 65 ft (19.8 m), and at least 10 inches (25.4 cm) in height for all other vessels over 25 ft (7.6 m) in length.

(d) Duties of owner and operator. The owner and operator of each vessel subject to this part must:

(1) Keep the vessel name and official number clearly legible and in good repair; and

(2) Ensure that no part of the vessel, its rigging, its fishing gear, or any other object obstructs the view of the official number from an enforcement vessel or aircraft.

§ 649.8Prohibitions.

(a) In addition to the general prohibitions specified in § 600.725 of this chapter, it is unlawful for any person owning or operating a vessel issued a Federal American lobster permit under § 649.4 or a vessel or person holding a valid State of Maine American lobster permit or license and fishing under the provisions of and under the areas designated in § 649.24 to do any of the following:

(1) Retain on board, land, or possess at or after landing, American lobsters that fail to meet the carapace length standard specified in § 649.20(b). All American lobsters will be subject to inspection and enforcement, up to and including the time when a dealer receives or possesses American lobsters for a commercial purpose.

(2) Retain on board, land, or possess any American lobster or parts thereof in violation of the mutilation standards specified in § 649.20(c).

(3) Retain on board, possess, or land any berried female American lobster specified in § 649.20(d).

(4) Remove eggs from any berried female American lobster, land, or possess any such lobster from which eggs have been removed. No such person may land or possess any lobster that has come in contact with any substance capable of removing lobster eggs.

(5) Retain on board, land, or possess any V-notched female American lobsters throughout the range of the stock.

(6) Possess, deploy, haul, harvest lobster from, or carry aboard a vessel any gear not identified, marked, vented, and panelled in accordance with the requirements specified in § 649.21, unless such gear has been rendered unfishable.

(7) Fish for, land, or possess American lobsters after December 31, 1994, unless the operator of the vessel has been issued an operator's permit under § 649.5, and the permit is on board the vessel and is valid.

(8) Fail to report to the Regional Director within 15 days any change in the information contained in the permit application as required under § 649.4(l) or § 649.5(k).

(9) Make any false statement in connection with an application under § 649.4 or § 649.5.

(10) Fail to affix and maintain permanent markings, as required by § 649.7.

(11) Sell, transfer, or barter or attempt to sell, transfer, or barter to a dealer any American lobsters, unless the dealer has a valid Federal Dealer's Permit issued under § 649.6.

(b) In addition to the prohibitions specified in paragraph (a) of this section, it is unlawful for any person owning or operating a vessel that has not been issued a limited access American lobster permit as described under § 649.4(b) or a vessel or person holding a valid State of Maine American lobster permit or license and fishing under the provisions of and in the area designated under § 649.24, to possess on board a vessel or land American lobsters unless the vessel is a party, charter, or dive boat and there are six or fewer American lobsters per person on such boats, and the lobster are not sold, traded or bartered, or unless the vessel is a recreational vessel, or a vessel fishing for American lobsters exclusively in State waters.

(c) In addition to the general prohibitions specified in § 600.725 of this chapter and the prohibitions specified in paragraphs (a) and (b) of this section, it is unlawful for any person to do any of the following:

(1) Possess on board a vessel or land American lobsters unless:

(i) The American lobsters were harvested by a vessel that has been issued and carries on board a valid Federal American lobster permit under § 649.4(a); or a valid limited access American lobster permit under § 649.4(b); or

(ii) The American lobsters were harvested by a vessel without a Federal American lobster permit and that fishes for American lobsters exclusively in state waters; or

(iii) The American lobsters were harvested by a party, charter, or dive vessel that possesses six or fewer American lobsters per person on board the vessel and the lobsters are not intended to be or are not traded, bartered, or sold; or

(iv) The American lobsters were harvested by a recreational fishing vessel; or

(v) The American lobsters were harvested by a vessel or person holding a valid State of Maine American lobster permit or license that is fishing under the provisions of and in the areas designated in § 649.24.

(2) Sell, barter or trade, or otherwise transfer, or attempt to sell, barter, or trade, or otherwise transfer for a commercial purpose, any American lobsters from a vessel, unless the vessel had been issued a valid Federal American lobster permit under § 649.4, the American lobsters were harvested by a vessel without a Federal lobster permit that fishes for lobsters exclusively in State waters or unless the vessel or person holds a valid State of Maine American lobster permit or license and is fishing under the provisions of and in the areas designated in § 649.24.

(3) Purchase, possess, or receive for a commercial purpose, or attempt to purchase, possess, or receive for a commercial purpose, as, or in the capacity of, a dealer, American lobsters taken from or harvested by a fishing vessel issued a Federal American lobster permit, unless in possession of a valid dealer's permit issued under § 649.6;

(4) Purchase, possess, or attempt to purchase or receive for commercial purposes, as, or in the capacity of, a dealer, American lobsters caught by a vessel other than one issued a Federal American lobster permit under § 649.4 or one holding or owned or operated by one holding a valid State of Maine American lobster permit or license and fishing under the provisions of and in the areas designated in § 649.24, unless the American lobsters were harvested by a vessel without a Federal American lobster permit and that fishes for American lobster exclusively in state waters.

(5) Beginning January 1, 1995, to be, or act as, an operator of a vessel fishing for or possessing American lobsters in or from the EEZ, or issued a Federal American lobster permit under § 649.4 (b), without having been issued and possessing a valid operator's permit issued under § 649.5.

(6) Assault, resist, oppose, impede, harass, intimidate, or interfere with either a NMFS-approved observer aboard a vessel, or an authorized officer conducting any search, inspection, investigation, or seizure in connection with enforcement of this part;

(7) Make any false statement, oral or written, to an authorized officer, concerning the taking, catching, harvesting, landing, purchase, sale, or transfer of any American lobsters;

(8) Violate any provision of this part, the Magnuson Act, or any regulation, permit, or notification issued under the Magnuson Act or these regulations;

(9) Possess or land any American lobsters harvested in or from the EEZ in violation of § 649.20; or

(10) Ship, transport, offer for sale, sell, or purchase, in interstate or foreign commerce, any whole live American lobster in violation of § 649.20.

(11) Fish, or be in the areas described in § 649.23(a)(1), (b)(1), (c)(1), and (d)(1) on a fishing vessel with mobile gear during the time periods specified in § 649.23(a)(2), (b)(2), (c)(2), and (d)(2), except as provided in § 649.23(a)(2), (b)(2), (c)(2), and (d)(2).

(12) Fish, or be in the areas described in § 649.23(a)(1), (b)(1), and (c)(1) on a fishing vessel with lobster pot gear during the time periods specified in § 649.23(a)(2), (b)(2), and (c)(2).

(13) Deploy or fail to remove lobster pot gear in the areas described in § 649.23(a)(1), (b)(1), and (c)(1) during the time periods specified in § 649.23(a)(2), (b)(2), and (c)(2).

(d) Any person possessing, or landing American lobsters at or prior to the time when those American lobsters are landed, or are received or possessed by a dealer, is subject to all of the prohibitions specified in paragraphs (a), (b) and (c) of this section, unless the American lobsters were harvested by a vessel without a Federal American lobster permit and that fishes for American lobsters exclusively in state waters; or are from a party, charter, or dive vessel that possesses or possessed six or fewer American lobsters per person aboard the vessel at any time and the lobsters are not intended for sale, trade, or barter; or are from a recreational vessel.

(e) Presumption. American lobsters that are possessed, or landed at or prior to the time when the American lobsters are received by a dealer, or American lobsters that are possessed by a dealer, are presumed to be harvested from the EEZ or by a vessel with a Federal lobster permit. A preponderance of all submitted evidence that such American lobsters were harvested by a vessel without a Federal American lobster permit and fishing exclusively for American lobsters in state waters will be sufficient to rebut the presumption.

(f) The possession of egg-bearing female American lobsters, V-notched female American lobsters, or American lobsters that are smaller than the minimum size set forth in § 649.20(b), will be primafacie evidence that such American lobsters were taken or imported in violation of these regulations. Evidence that such American lobsters were harvested by a vessel not holding a permit under this part and fishing exclusively within state or foreign waters will be sufficient to rebut the presumption.

(a) Condition. By being issued a Federal limited access American lobster permit, the vessel owner is subject to all measures in this subpart, regardless of where American lobsters were harvested.

(b) Carapace length. (1) The minimum carapace length for all American lobsters harvested in or from the EEZ is 31/4 inches (8.26 cm).

(2) The minimum carapace length for all American lobsters landed, harvested, or possessed at or after landing by vessels issued a Federal American lobster permit, is 31/4 inches (8.26 cm).

(3) No person may ship, transport, offer for sale, sell, or purchase, in interstate or foreign commerce, any whole live American lobster that is smaller than the minimum size specified in this paragraph (b).

(c) Mutilation. (1) No person may remove meat or any body appendage from any American lobster harvested in or from the EEZ before landing, or to have in possession on board any American lobster part other than whole lobsters.

(2) No owner, operator or person aboard a vessel issued a Federal American lobster permit may remove meat or any body appendage from any American lobster before landing, or to have in possession on board any American lobster part other than whole lobsters.

(d) Berried females. (1) Any berried female American lobster harvested in or from the EEZ must be returned to the sea immediately.

(2) Any berried female American lobster harvested or possessed by a vessel issued a Federal American lobster permit must be returned to the sea immediately.

(3) No person may ship, transport, offer for sale, sell, or purchase, in interstate or foreign commerce, any berried female American lobster as specified in this paragraph (d).

(e) Scrubbing. (1) No person may remove extruded eggs attached to the abdominal appendages from any female American lobster harvested on or from the EEZ.

(2) No owner, operator or person aboard a vessel issued a Federal American lobster permit may remove extruded eggs attached to the abdominal appendages from any female American lobster.

(3) No person may ship, transport, offer for sale, sell, or purchase, in interstate or foreign commerce, any whole live American lobster that bears evidence of the forcible removal of extruded eggs from its abdominal appendages as specified in this paragraph (e).

(a) Identification. All lobster gear deployed in the EEZ or possessed by a person whose vessel is permitted for fishing in the EEZ, and not permanently attached to the vessel, must be legibly and indelibly marked with one of the following codes of identification:

(b) Marking. In the areas of the EEZ described in paragraph (b)(4) of this section, lobster pot trawls are to be marked as follows:

(1) Lobster pot trawls of three or fewer pots must be marked with a single buoy.

(2) Lobster pot trawls consisting of more than three pots must have a radar reflector and a single flag or pennant on the westernmost end (marking the half compass circle from magnetic south through west, to and including north), while the easternmost end (meaning the half compass circle from magnetic north through east, to and including south) of an American lobster pot trawl must be marked with a radar reflector only. Standard tetrahedral corner radar reflectors (see Figure 1 of this part) of at least 8 inches (20.32 cm)(both in height and width, and made from metal) must be employed.

(3) No American lobster pot trawl shall exceed 1.5 nautical miles (2.78 km) in length, as measured from buoy to buoy.

(4) Gear marking requirements apply in the following areas:

(i) Gulf of Maine gear area. All waters of the EEZ north of 42°20′ N. lat. seaward of a line drawn 12 nautical miles (22.2 km) from the baseline of the territorial sea;

(ii) Georges Bank gear Area. All waters of the EEZ south of 42°20′ N. lat. and east of 70°00′ W. long. or the outer boundary of the territorial sea, whichever lies farther east;

(iii) Southern New England gear Area. All waters of the EEZ west of 70°00′ W. long., east of 71°30′ W. long. at a depth greater than 25 fathoms (45.72 m); and

(iv) Mid-Atlantic gear Area. All waters of the EEZ, west of 71°30′ W. long. and north of 36°33′ N. lat. at a depth greater than 40 fathoms (73.15 m).

(c) Escape vents. All American lobster traps deployed in the EEZ or possessed by a person whose vessel is permitted for fishing in the EEZ, as specified under § 649.4, must be constructed to include one of the following escape vents in the parlor section of the trap. The vent must be located in such a manner that it would not be blocked or obstructed by any portion of the trap, associated gear, or the sea floor in normal use.

(1) The specifications for escape vents are as follows:

(i) A rectangular portal with an unobstructed opening not less than 17/8 inches (4.76 cm) by 53/4 inches (14.61 cm);

(ii) Two circular portals with unobstructed openings not less than 23/8 inches (6.03 cm) in diameter.

(2) The Regional Director may, at the request of, or after consultation with, the Lobster Oversight Committee of the Council, approve, and publish in the Federal Register any other type of acceptable escape vent that the Regional Director finds to be consistent with paragraphs (c)(1)(i) and (ii) of this section.

(i) The opening to be covered by the ghost panel must be rectangular and shall not be less than 33/4 inches (9.53 cm) by 33/4 inches (9.53 cm).

(ii) The panel must be constructed of, or fastened to the trap with, one of the following untreated materials: Wood lath, cotton, hemp, sisal or jute twine not greater than 3/16 inch (0.48 cm) in diameter, or non-stainless, uncoated ferrous metal not greater than 3/32 inch (0.24 cm) in diameter.

(iii) The door of the trap may serve as the ghost panel, if fastened with a material specified in paragraph (d)(1)(ii) of this section.

(iv) The ghost panel must be located in the outer parlor(s) of the trap and not the bottom of the trap.

(2) The Regional Director may, at the request of, or after consultation with, the Lobster Oversight Committee of the Council, approve, and publish in the Federal Register, any other design, mechanism, material, or specification not described in the regulations in this part that serves to create an escape portal not less than 33/4 inches (9.53 cm) by 33/4 inches (9.53 cm).

(e) Enforcement action. Unidentified, unmarked, unvented, or improperly vented American lobster traps will be seized and disposed of in accordance with the provisions of part 219 of this title.

§ 649.22Experimental fishing exemption.

(a) The Regional Director may exempt any person or vessel from the requirements of this part for the conduct of experimental fishing beneficial to the management of the American lobster resource or fishery.

(b) The Regional Director may not grant such exemption unless it is determined that the purpose, design, and administration of the exemption is consistent with the objectives of the FMP, the provisions of the Magnuson Act, and other applicable law, and that granting the exemption will not:

(1) Have a detrimental effect on the American lobster resource and fishery; or

(2) Create significant enforcement problems.

(c) Each vessel participating in any exempted experimental fishing activity is subject to all provisions of this part, except those necessarily relating to the purpose and nature of the exemption. The exemption will be specified in a letter issued by the Regional Director to each vessel participating in the exempted activity. This letter must be carried aboard the vessel seeking the benefit of such exemption.

§ 649.23Restricted gear areas.

(a) Restricted Gear Area I. (1) Restricted Gear Area I is defined by straight lines connecting the following points in the order stated:

(2) Duration—(i) Mobile Gear. From October 1 through June 15, no fishing vessel with mobile gear or person on a fishing vessel with mobile gear may fish, or be in Restricted Gear Area I unless transiting. Vessels may transit this area provided that all mobile gear is on board the vessel while inside the area.

(ii) Lobster pot gear. From June 16 through September 30, no fishing vessel with lobster pot gear or person on a fishing vessel with lobster pot gear may fish, and no lobster pot gear may be deployed or remain, in Restricted Gear Area I.

(b) Restricted Gear Area II. (1) Restricted Gear Area II is defined by straight lines connecting the following points in the order stated:

(2) Duration—(i) Mobile Gear. From November 27 through June 15, no fishing vessel with mobile gear or person on a fishing vessel with mobile gear may fish, or be in Restricted Gear Area II unless transiting Vessels may transit this area provided that all mobile gear is on board the vessel while inside the area.

(ii) Lobster pot gear. From June 16 through November 26, no fishing vessel with lobster pot gear or person on a fishing vessel with lobster pot gear may fish, and no lobster pot gear may be deployed or remain, in Restricted Gear Area II.

(c) Restricted Gear Area III. (1) Restricted Gear Area III is defined by straight lines connecting the following points in the order stated, except as specified in paragraph (c)(3) of this section:

(2) Duration—(i) Mobile Gear. From June 16 through November 26, no fishing vessel with mobile gear or person on a fishing vessel with mobile gear may fish, or be in Restricted Gear Area III unless transiting. Vessels may transit this area provided that all mobile gear is on board the vessel while inside the area.

(ii) Lobster pot gear. From January 1 through April 30, no fishing vessel with lobster pot gear or person on a fishing vessel with lobster pot gear may fish, and no lobster pot gear may be deployed or remain, in Restricted Gear Area III.

(d) Restricted Gear Area IV. (1) Restricted Gear Area IV is defined by straight lines connecting the following points in the order stated:

(2) Duration—(i) Mobile Gear. From June 16 through September 30, no fishing vessel with mobile gear or person on a fishing vessel with mobile gear may fish, or be in Restricted Gear Area IV unless transiting. Vessels may transit this area provided that all mobile gear is on board the vessel while inside the area.

A person or vessel holding a valid permit or license issued by the State of Maine that lawfully permits that person to engage in commercial fishing for American lobster may, with the approval of the State of Maine, engage in commercial fishing for American lobsters in the following areas designated as EEZ, if such fishing is conducted in such waters in accordance with all other applicable Federal and State regulations:

(a) West of Monhegan Island in the area located north of the line 43.5°42′08′′ N. lat., 69.5°34′18′′ W. long., and 43.5°42′15′′ N. lat., 69.5°19′18′′ W. long.

(b) East of Monhegan Island in the area located west of the line 43.5°44′00′′ N. lat., 69.5°15′05′′ W. long., and 43.5°48′10′′ N. lat., 69.5°08′01′′ W. long.

(c) South of Vinalhaven in the area located west of the line 43.5°52′21′′ N. lat., 68.5°39′54′′ W. long., and 43.5°48′10′′ N. lat., 67.5°40′33′′ W. long.

(d) South of Boris Bubert Island in the area located north of the line 44.5°19′15′′ N. lat, 67.5°49′30′′ W. long. and 44.5°23′5′′ N. lat., 67.5°40′33′′ W. long.

The purpose of this subpart is to specify the requirements and framework procedures for implementing the Stock Rebuilding Program, intended to eliminate overfishing in any resource areas.

§ 649.42Stock rebuilding program requirements and time frame.

(a) General. (1) The Council has until July 20, 1995 to submit to NMFS management measures to achieve the objectives of the FMP. The measures must be designed to achieve the FMP objectives for reducing fishing mortality within 5 years for the stock in the Gulf of Maine segment of the fishery and 10 years for the Southern New England segment of the stock. Such measures may be submitted through the Magnuson Act amendment process or through the first-year area management framework specifications in § 649.43.

(2) In developing such management measures, the Council shall submit management measures to reduce fishing mortality in each of four management areas specified in paragraph (b) of this section. These management measures shall be implemented according to the first-year area management framework specifications in § 649.43.

(3) If the Council has not submitted management measures sufficient to achieve the objectives of the FMP on or before July 20, 1995, the Secretary shall determine, according to provisions of 16 U.S.C. 1854(c), whether to prepare an amendment to the FMP.

(b) Management areas. The Stock Rebuilding Program to be submitted by the Council shall be developed based on the status of stock of American lobsters and management considerations for each of the areas described and defined in this paragraph (b) (see Figures 2 and 3 of this part).

(1) Area 1. Near-shore EEZ Waters of the Gulf of Maine. This area is defined by the area bounded by straight lines (rhumb lines) connecting the following points, in the order stated, and the territorial sea:

(2) Area 2. Near-shore EEZ Waters of Southern New England. This area is defined by the area bounded by straight lines (rhumb lines) connecting the following points in the order stated and the territorial sea:

(3) Area 3. EEZ Offshore Waters. This area is defined by the area bounded by straight lines (rhumb lines) connecting the following points, in the order stated, and westerly of the U.S. - Canada Maritime Boundary:

(4) Area 4. Near-shore EEZ Waters of the Middle Atlantic. This area is defined by the area bounded by straight lines (rhumb lines) connecting the following points, in the order stated, and the territorial sea:

(c) Effort Management Teams (EMT). (1) The Council shall establish EMTs for each area specified in paragraph (b) of this section, for the purpose of making recommendations to the Council on management measures to achieve the objectives of the FMP.

(2) Members of each EMT shall be appointed by the Council, in consultation with appropriate states and NMFS. Members of the EMT shall consist of a group of technical representatives that serve on each EMT and a group of representatives from the lobster industry, based on their geographical affiliation with an EMT. The Council may decide the number of representatives and operating procedures of the EMTs.

(3) No later than January 20, 1995, each EMT shall report its recommendations for management measures for the stock rebuilding program for the area it represents to the Council.

§ 649.43First year framework specifications.

(a) On or before January 20, 1995, each EMT shall submit its recommendations for management measures for the area it represents to the Council. In developing these recommendations, the EMTs may consider and recommend additional restrictions or limitations on vessels participating in the lobster fishery according to the categories and guidelines contained in paragraph (b) of this section.

(b) After receiving the recommendations of the EMTs, the Council shall determine what management measures are necessary for each management area, in order to achieve the objectives of stock rebuilding specified in the FMP. For the management measures the Council determines are necessary to meet FMP objectives, the Council shall provide appropriate rationale and economic and biological analysis of the determinations. The Council shall make these determinations over the span of at least two Council meetings and provide the public with advance notice of, and opportunity to comment on, the determinations and the analyses before making final recommendations to be submitted to NMFS. The Council's recommendation on necessary management measures may come from one or more of the following categories:

(1) Minimum-size changes;

(2) A maximum-size limit;

(3) Trap limits;

(4) Seasonal closures of one or more management areas;

(5) Closed areas or zones within a management area;

(6) Restrictions on allowable fishing time;

(7) Restrictions on allowable catches;

(8) Permitting restrictions;

(9) Additional restrictions on gear;

(10) Overfishing definition;

(11) Limitations on participation in the fishery in accordance with the control date guidelines listed below. These guidelines will apply until a stock rebuilding program is established.

(i) It is the intent of the Council that in the event that a system of assigning fishing rights is developed as part of the FMP, such assignments shall be based upon historical levels of participation in the fishery prior to March 25, 1991, with consideration for recent investments that have not yet been reflected in measures of participation.

(ii) New or re-rigged vessels will be given consideration in the assignment of fishing rights if:

(A) They were under construction or re-rigging for directed lobster fishing as of March 25, 1991, as evidenced by written construction contracts, work orders, equipment purchases, or other evidence of substantial investment and intent to participate in the lobster fishery; and

(B) They possessed an American lobster permit and landed lobster prior to March 25, 1992.

(iii) The public is further notified that it is the intent of the Council that historical participation will transfer with a vessel, for transfers made after March 25, 1991, unless such transfer is accompanied by a written document indication the agreement of both buyer and seller that any future fishing rights applicable to that vessel are not being transferred with the vessel.

(iv) The Council further intends that any system of assigning fishing rights will take into consideration the following concerns relative to individuals or corporations that have sold a vessel within the time that may be chosen to determine historical fishing rights:

(A) The degree of economic dependence upon the lobster fishery including, but not limited to, the percentage of income derived from the lobster fishery;

(B) Extent of past participation in the lobster fishery; and

(C) Demonstration of intent prior to March 25, 1991, to re-enter the lobster fishery with a different vessel.

(12) Any other restrictions that the Council may designate for the purpose of reducing or controlling fishing mortality rates, except that an Individual Transferable Quota (ITQ) system would require a full FMP amendment.

(c) After developing necessary management measures and receiving public testimony, the Council shall make a recommendation to the Regional Director on or before July 20, 1995. The Council's recommendation must include supporting rationale and, if management measures are recommended, an analysis of impacts, and a recommendation to the Regional Director on whether to publish the management measures as a final rule. If the Council recommends that the management measures should be published as a final rule, the Council must consider at least the following factors and provide support and analysis for each factor considered:

(1) Whether the availability of data on which the recommended management measures are based allows for adequate time to publish a proposed rule, and whether regulations have to be in place for an entire harvest/fishing season;

(2) Whether there has been adequate notice and opportunity for participation by the public and members of the affected industry in the development of the Council's recommended management measures;

(3) Whether there is an immediate need to protect the resource; and

(4) Whether there will be a continuing evaluation of management measures adopted, following their promulgation as a final rule.

(d) If the Council's recommendation includes adjustments or additions to management measures, after reviewing the Council's recommendation and supporting information:

(1) If the Regional Director concurs with the Council's recommended management measures and determines that the recommended management measures may be published as a final rule, based on the factors specified in paragraph (c) of this section, the action will be published in the Federal Register as a final rule; or

(2) If the Regional Director concurs with the Council's recommendation and determines that the recommended management measures should be published first as a proposed rule, the action will be published as a proposed rule in the Federal Register. After additional public comment, if the Regional Director concurs with the Council recommendation, the action will be published as a final rule in the Federal Register; or

(3) If the Regional Director does not concur, the Council will be notified, in writing, of the reasons for the non-concurrence.

(e) At any time, the Council may make other adjustments to management measures implemented under this part pursuant to the provisions in § 649.44.

(f) Nothing in this section is meant to diminish the authority of the Secretary to take emergency action under section 305(c) of the Magnuson Act.

§ 649.44Framework specifications.

(a) Annually, upon request from the Council, the Regional Director will provide the Council with information of the status of the American lobster resource, based on the most recent stock assessment report.

(b) The Council and Atlantic States Fisheries Commission, through consultation with the ASMFC Lobster Scientific Committee within the stock assessment process and with the EMTs, shall continue to monitor the effectiveness of the Stock Rebuilding Program and to ensure, to the extent possible, that regional measures (within a Management Area) do not shift costs from one Management Area to another.

(c) In addition, the EMTs, on at least an annual basis, shall determine the extent to which the objectives of the FMP are being achieved and shall make recommendations to the Council for further management actions, if required.

(d) After receiving the EMT recommendations, the Council shall determine whether adjustments to, or additional management measures are necessary to meet the goals and objectives of the FMP. After considering the EMT's recommendations, or at any other time, if the Council determines that adjustments to, or additional management measures are necessary, it shall develop and analyze appropriate management actions over the span of at least two Council meetings. The Council shall provide the appropriate rationale and economic and biological analysis for its recommendation, utilizing the most current catch, effort, and other relevant data from the fishery. The Council shall provide the public with advance notice of the availability of both the proposals and the analyses, and opportunity to comment on them prior to, and at, the second Council meeting. The Council's recommendation on adjustments or additions to management measures may come from one or more of the following categories:

(1) Minimum-size changes;

(2) A maximum-size limit;

(3) Trap limits;

(4) Seasonal closures of one or more management areas;

(5) Closed areas or zones within a management area;

(6) Restrictions on allowable fishing time;

(7) Restrictions on allowable catches;

(8) Permitting restrictions;

(9) Additional restrictions on gear;

(10) Overfishing definition;

(11) Limitations on participation in the fishery in accordance with the control date guidelines contained in § 649.44(b)(11). These guidelines will apply until a stock rebuilding program is established.

(12) Any other restrictions which the Council may designate for the purpose of reducing or controlling fishing mortality rates, except that an Individual Transferable Quota (ITQ) system would require a full FMP amendment.

(e) The Council may develop a recommendation on measures to address gear conflicts as defined under 50 CFR 600.10 in accordance with the procedure specified in § 648.55(d) and (e).

(f) After developing management actions and receiving public testimony, the Council shall make a recommendation to the Regional Director. The Council's recommendation must include supporting rationale and, if management measures are recommended, an analysis of impacts, and a recommendation to the Regional Director on whether to publish the management measures as a final rule. If the Council recommends that the management measures should be published as a final rule, the Council must consider at least the following factors and provide support and analysis for each factor considered:

(1) Whether the availability of data on which the recommended management measures are based allows for adequate time to publish a proposed rule, and whether regulations have to be in place for an entire harvest/fishing season;

(2) Whether there has been adequate notice and opportunity for participation by the public and members of the affected industry in the development of the Council's recommended management measures;

(3) Whether there is an immediate need to protect the resource or to impose management measures to resolve gear conflicts; and

(4) Whether there will be a continuing evaluation of management measures adopted, following their promulgation as a final rule.

(g) If the Council's recommendation includes adjustments or additions to management measures, after reviewing the Council's recommendation and supporting information:

(1) If the Regional Director concurs with the Council's recommended management measures and determines that the recommended management measures may be published as a final rule, based on the factors specified in paragraph (d) of this section, the action will be published in the Federal Register as a final rule; or

(2) If the Regional Director concurs with the Council's recommendation and determines that the recommended management measures should be published first as a proposed rule, the action will be published as a proposed rule in the Federal Register. After additional public comment, if the Regional Director concurs with the Council recommendation, the action will be published as a final rule in the Federal Register; or

(3) If the Regional Director does not concur, the Council will be notified, in writing, of the reasons for the non-concurrence.

(h) Nothing in this section shall impair the authority of the Secretary to take emergency action under section 305(c) of the Magnuson Act.